Appendix 1 - Legislative instruments

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, or in relevant legislation that impacts upon this guideance such as the Privacy Act 1988. Agencies may continue to use the guidance for reference, but should be aware that it may not reflect current legislative requirements.

PUBLIC SERVICE ACT 1999—SECT 10

The APS Values

The APS Values are as follows:

the APS is apolitical, performing its functions in an impartial and professional manner;

the APS is a public service in which employment decisions are based on merit;

the APS provides a workplace that is free from discrimination and recognises and utilises the diversity of the Australian community it serves;

the APS has the highest ethical standards;

the APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public;

the APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs;

the APS delivers services fairly, effectively, impartially and courteously to the Australian public and is sensitive to the diversity of the Australian public;

the APS has leadership of the highest quality;

the APS establishes workplace relations that value communication, consultation, cooperation and input from employees on matters that affect their workplace;

the APS provides a fair, flexible, safe and rewarding workplace;

the APS focuses on achieving results and managing performance;

the APS promotes equity in employment;

the APS provides a reasonable opportunity to all eligible members of the community to apply for APS employment;

the APS is a career based service to enhance the effectiveness and cohesion of Australia's democratic system of government;

the APS provides a fair system of review of decisions taken in respect of APS employees.

PUBLIC SERVICE ACT 1999—SECT 12

Agency Heads must promote APS Values

An Agency Head must uphold and promote the APS Values.

PUBLIC SERVICE ACT 1999—SECT 13

The APS Code of Conduct

An APS employee must behave honestly and with integrity in the course of APS employment.

An APS employee must act with care and diligence in the course of APS employment.

An APS employee, when acting in the course of APS employment, must treat everyone with respect and courtesy, and without harassment.

An APS employee, when acting in the course of APS employment, must comply with all applicable Australian laws. For this purpose, Australian law means:

any Act (including this Act), or any instrument made under an Act

any law of a State or Territory, including any instrument made under such a law.

An APS employee must comply with any lawful and reasonable direction given by someone in the employee's Agency who has authority to give the direction.

An APS employee must maintain appropriate confidentiality about dealings that the employee has with any Minister or Minister's member of staff .

An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

An APS employee must use Commonwealth resources in a proper manner.

An APS employee must not provide false or misleading information in response to a request for information that is made for official purposes in connection with the employee's APS employment.

An APS employee must not make improper use of:

inside information; or

the employee's duties, status, power or authority in order to gain, or seek to gain, a benefit or advantage for the employee or for an other person.

An APS employee must at all times behave in a way that upholds the APS Values and the integrity and good reputation of the APS.

An APS employee on duty overseas must at all times behave in a way that upholds the good reputation of Australia.

An APS employee must comply with any other conduct requirement that is prescribed by the regulations.

PUBLIC SERVICE REGULATIONS 1999

Reg 2.1 Duty not to disclose information (Act s 13)

For the purposes of subsection 13(13) of the Act, an APS employee, except in the course of his or her duties as an APS employee or with the Agency Head's express authority, must not give or disclose, directly or indirectly, any information about public business or anything of which the employee has official knowledge.

Note: Under s 70 of the Crimes Act 1914, it is an offence for an APS employee to publish or communicate the information.

PUBLIC SERVICE ACT 1999—SECTION 15

Breaches of the Code of Conduct

An Agency Head may impose the following sanctions on an APS employee in the Agency who is found (under procedures established under subsection (3)) to have breached the Code of Conduct:

termination of employment

reduction in classification

re-assignment of duties

reduction in salary

deductions from salary, by way of fine

a reprimand.

The regulations may prescribe limitations on the power of an Agency Head to impose sanctions under subsection 1.

An Agency Head must establish procedures for determining whether an APS employee in the Agency has breached the Code of Conduct. The procedures: a. must comply with basic procedural requirements set out in Commissioner's Directions b. must have due regard to procedural fairness c. may be different for different categories of APS employees.

The Commissioner must issue directions in writing for the purposes of subsection 3.

An Agency Head must take reasonable steps to ensure that every APS employee in the Agency has ready access to the documents that set out the procedures referred to in subsection 3.

PUBLIC SERVICE REGULATIONS 1999

Reg 3.10 Suspension from duties (Act s. 28)

An Agency Head may suspend an APS employee employed in the Agency from duties if the Agency Head believes on reasonable grounds that:

the employee has, or may have, breached the Code of Conduct; and

the employee's suspension is in the public, or the Agency's, interest.

The suspension may be with remuneration.

If the suspension is to be without remuneration, the period without remuneration is to be: a. not more than 30 days b. if exceptional circumstances apply—a longer period.

The Agency Head must review the suspension at reasonable intervals.

The Agency Head must immediately end the suspension if the Agency Head no longer believes on reasonable grounds: a. that the APS employee has, or may have, breached the Code of Conduct b. that the employee's suspension is in the public, or the Agency's, interest.

The Agency Head must immediately end the suspension if a sanction has been imposed on the APS employee for the relevant breach of the Code of Conduct.

In exercising powers under this regulation, the Agency Head must have due regard to procedural fairness unless the Agency Head is satisfied on reasonable grounds that, in the particular circumstances, it would not be appropriate.

Reg 5.24 Application for primary review

An affected employee may apply in writing to the relevant Agency Head for primary review of a reviewable action.

However, the application must be made to the Merit Protection Commissioner if the application is for review of:

a determination that the affected employee has breached the Code of Conduct

a sanction imposed for breach of the Code of Conduct.

Also, the employee may apply in writing to the Merit Protection Commissioner for review of the action if:

the Agency Head was directly involved in the action

it is not appropriate, because of the seriousness or sensitivity of the action, for the Agency Head to deal with the application

the action is claimed to be victimisation or harassment of the employee for having made a previous application for review of action.

The application must state briefly:

why the review is sought

if a particular outcome is sought—the outcome sought.

Examples of outcomes

Reconsideration of the action.

Re-assignment of duties.

Reg 5.36 Making of application does not operate as stay

The making of an application for review of an APS action under this Division does not operate to stay the action.

PUBLIC SERVICE COMMISSIONER'S DIRECTIONS 1999

Chapter 5—Basic Requirements for Procedures for Determining Breaches of the Code of Conduct

5.1 Purpose of Chapter 5

The purpose of this Chapter is to set out the basic procedural requirements that must be complied with by the procedures established by an Agency Head under subsection 15 (3)of the Act for determining whether an APS employee in the Agency has breached the Code of Conduct.

Note: The requirements set out in this Chapter and the procedures established under subsection 15 (3) of the Act apply only in relation to a suspected breach of the Code of Conduct by an APS employee in respect of which a determination is to be made. Not all suspected breaches of the Code of Conduct may need to be dealt with by way of a determination. In particular circumstances, another way of dealing with a suspected breach of the Code may be more appropriate.

5. 2 Information to be given to employee before determination is made

Before any determination is made in relation to a suspected breach of the Code of Conduct by an APS employee, the employee must:

be informed of:

the details of the suspected breach of the Code of Conduct (including any variation of those details)

the sanctions that may be imposed on the employee under subsection 15 (1) of the Act (including any limitations on that power contained in regulations made for the purposes of subsection 15 (2) of the Act)

be given reasonable opportunity to make a statement in relation to the suspected breach.

5.3 Determination process to be informal

The process for determining whether an APS employee has breached the Code of Conduct must be carried out with as little formality and as much expedition as a proper consideration of the matter allows.

5.4 Person making determination to be independent and unbiased

An Agency Head must take reasonable steps to ensure that the person who determines whether an APS employee has breached the Code of Conduct is, and appears to be, independent and unbiased.

5.5 Record of determination

After a determination in relation to a suspected breach of the Code of Conduct by an APS employee is made, a written record stating whether the employee has been found to have breached the Code of Conduct must be prepared.

Note: The Archives Act 1983 and the Privacy Act 1988 apply to a record made under this clause.

5.6 Appropriate procedures if basis of APS employee's engagement in an agency changes or employee moves to a different agency

This clause applies if:

an APS employee in an Agency is suspected of having breached the Code of Conduct

before any determination is made in relation to the suspected breach:

the basis of the employee's engagement in the Agency changes

the employee moves to a different Agency.

Note: Examples of a change in the basis of an APS employee's engagement in an Agency are as follows:

a change from engagement for a specified term, or for the duration of a specified task, to engagement as an ongoing APS employee

a change from engagement for duties that are irregular or intermittent to engagement as an ongoing APS employee.

A determination (if any) in relation to the suspected breach must be made:

if the basis of the employee's engagement in the Agency has changed—in accordance with the procedures applicable to the basis of the employee's engagement in the Agency at the time the process for determining whether the employee has breached the Code of Conduct is commenced

if the employee has moved to a different Agency—in accordance with the procedures applicable in the Agency to which the employee has moved at the time the process for determining whether the employee has breached the Code of Conduct is commenced.

a collector collects personal information for inclusion in a record or in a generally available publication; and

the information is solicited by the collector from the individual concerned;

the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensurethat, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of:

the purpose for which the information is being collected;

if the collection of the information is authorised or required by or under law—the fact that the collection of the information is so authorised or required; and

any person to whom, or any body or agency to which, it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first mentioned person, body or agency to pass on that information.

Principle 3—Solicitation of personal information generally

Where:

a collector collects personal information for inclusion in a record or in a generally available publication; and

the information is solicited by the collector: the collector shall take such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is collected:

the information collected is relevant to that purpose and is up to date and complete; and

the collection of the information does not intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Principle 4—Storage and security of personal information

A record-keeper who has possession or control of a record that contains personal information shall ensure:

that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and

that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.

Principle 5—Information relating to records kept by record-keeper

A record-keeper who has possession or control of records that contain personal information shall, subject to clause 2 of this Principle, take such steps as are, in the circumstances, reasonable to enable any person to ascertain:

whether the record-keeper has possession or control of any records that contain personal information; and

if the record-keeper has possession or control of a record that contains such information:

the nature of that information;

the main purposes for which that information is used; and

the steps that the person should take if the person wishes to obtain access to the record.

A record-keeper is not required under clause 1 of this Principle to give a person information if the record-keeper is required or authorised to refuse to give that information to the person under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

A record-keeper shall maintain a record setting out:

the nature of the records of personal information kept by or on behalf of the record-keeper;

the purpose for which each type of record is kept;

the classes of individuals about whom records are kept;

the period for which each type of record is kept;

the persons who are entitled to have access to personal information contained in the records and the conditions under which they are entitled to have that access; and

the steps that should be taken by persons wishing to obtain access to that information.

A record-keeper shall:

make the record maintained under clause 3 of this Principle available for inspection by members of the public; and

give the Commissioner, in the month of June in each year, a copy of the record so maintained.

Principle 6— Access to records containing personal information

Where a record-keeper has possession or control of a record that contains personal information, the individual concerned shall be entitled to have access to that record, except to the extent that the record-keeper is required or authorised to refuse to provide the individual with access to that record under the applicable provisions of any law of the Commonwealth that provides for access by persons to documents.

Principle 7— Alteration of records containing personal information

A record-keeper who has possession or control of a record that contains personal information shall take such steps (if any), by way of making appropriate corrections, deletions and additions as are, in the circumstances, reasonable to ensure that the record:

is accurate; and

is, having regard to the purpose for which the information was collected or is to be used and to any purpose that is directly related to that purpose, relevant, up to date, complete and not misleading.

The obligation imposed on a record-keeper by clause 1 is subject to any applicable limitation in a law of the Commonwealth that provides a right to require the correction or amendment of documents.

Where:

the record-keeper of a record containing personal information is not willing to amend that record, by making a correction, deletion or addition, in accordance with a request by the individual concerned; and

no decision or recommendation to the effect that the record should be amended wholly or partly in accordance with that request has been made under the applicable provisions of a law of the Commonwealth;

the record-keeper shall, if so requested by the individual concerned, take such steps (if any) as are reasonable in the circumstances to attach to the record any statement provided by that individual of the correction, deletion or addition sought.

Principle 8—Record-keeper to check accuracy etc of personal information before use

A record-keeper who has possession or control of a record that contains personal information shall not use that information without taking such steps (if any) as are, in the circumstances, reasonable to ensure that, having regard to the purpose for which the information is proposed to be used, the information is accurate, up to date and complete.

Principle 9—Personal information to be used only for relevant purposes

A record-keeper who has possession or control of a record that contains personal information shall not use the information except for a purpose to which the information is relevant.

Principle 10—Limits on use of personal information

A record-keeper who has possession or control of a record that contains personal information that was obtained for a particular purpose shall not use the information for any other purpose unless:

the individual concerned has consented to use of the information for that other purpose;

the record-keeper believes on reasonable grounds that use of the information for that other purpose is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or another person;

use of the information for that other purpose is required or authorised by or under law;

use of the information for that other purpose is reasonably necessary for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue; or

the purpose for which the information is used is directly related to the purpose for which the information was obtained.

Where personal information is used for enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue, the record- keeper shall include in the record containing that information a note of that use.

Principle 11—Limits on disclosure of personal information

A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person, body or agency (other than the individual concerned) unless:

the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency;

the individual concerned has consented to the disclosure;

the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;

the disclosure is required or authorised by or under law; or

the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.

Where personal information is disclosed for the purposes of enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the purpose of the protection of the public revenue, the record-keeper shall include in the record containing that information a note of the disclosure.

A person, body or agency to whom personal information is disclosed under clause 1 of this Principle shall not use or disclose the information for a purpose other than the purpose for which the information was given to the person, body or agency.

Connect with APSC

The Australian Public Service Commission (APSC) is a central agency within the Prime Minister and Cabinet portfolio. The Commission supports two statutory office holders: the Australian Public Service Commissioner - who is also agency head - and the Merit Protection Commissioner. Their functions are set out in sections 41(1) and 50(1), respectively, of the Public Service Act 1999.